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Bar News - January 13, 2012

Criminal Law: A Criminal Defense Attorneyís Guide to Social Media: the Keyword is DONíT


David H. Mirsky
If you are a criminal defense attorney in the new millennium, you have something to deal with that simply was not present in the 20th century. Like most people these days, you probably have been intrigued by the possibilities for broadening your horizons and name recognition through online social media outlets such as Facebook, Twitter, Google+, or by participating in the online pastime of blogging. All of these new tools provide the opportunity to reach out beyond the sphere of your daily existence, allowing you to build and retain relationships with a larger circle of friends and acquaintances. There is much to gain from using these online resources, but if you are a criminal defense attorney, you need to keep in mind that you have committed yourself to an area of practice that carries with it strict ethical rules that cannot be compromised under any circumstance.

After reading this article, please consult your Rules of Professional Conduct, paying particular attention to the sections pertaining to the "Client-Lawyer Relationship" and the lawyer as "Advocate". If you are a lawyer who does not practice in the area of criminal law, you will likely notice that the caveats contained in this article apply to your area of practice as well.

Letís consider the basic ethical principles that constrain the behavior of a properly functioning criminal defense attorney. The most basic of these is the duty to maintain a lock and key as to all communications from client to attorney. We all know about the attorney-client privilege. The properly functioning criminal defense attorneys I know never disclose any client communication to anyone unless there is a specific purpose to do so that furthers an important client interest. So if youíre wondering how the duty to maintain the inviolability of client communications can be harmonized with the modern behavior of expressing oneís inner thoughts to selected groups of people online, I will tell you: it canít. You canít disclose privileged communications on Facebook, Twitter, Google+, or in any form of blogging endeavor. Do not do it under any circumstance.

In tandem with the requirement of maintaining a lock and key as to all client communications is the similar but broader requirement that a criminal defense attorney must maintain the confidentiality of all matters pertaining to the representation of a client. By maintaining confidentiality I mean that a properly functioning defense attorney cannot disclose information about a client or a matter pertaining to a client unless the disclosure is required to further an important client interest. The use of online social media and the practice of blogging are inherently in opposition to a criminal defense attorneyís duty to maintain confidentiality of all client matters. What does that mean? It means that if you participate in the use of Facebook, Twitter, Google+, or if you participate in any kind of blogging, that participation cannot in any way involve a client matter. So just donít do it.

To younger attorneys these caveats may seem harsh, and maybe they are. But the job of a criminal defense attorney is serious. It is so serious that the role was provided for in our Bill of Rights. See the Sixth Amendment to the United States Constitution ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to have the Assistance of Counsel for his defence."). As a criminal defense attorney you have taken on a role that is necessary to protect the individual against the power and authority of the State. We know from our history as a nation that people from minority groups have at times faced legally sanctioned persecution where the attributes of a fair trial have not been fully present. Our Constitutionís requirement of effective assistance of counsel mandates the existence of serious, dedicated, and ethically responsible defense attorneys whose presence in the legal system ensures public protection against the potential tyranny of the state. The requirements of maintaining the inviolability of client communications, client information, and attorney work product, are facets of the underlying right that all accused individuals have to the effective assistance of legal counsel. Without effective counsel, there cannot be a fair trial, and without the right to a fair trial, those in power can always squelch their opposition by placing their opponents under the threat of criminal prosecution.

The right to a fair trial by a jury of oneís peers would be meaningless if trials are going to be conducted by attorneys who disclose privileged information without regard to the rights and interests of their clients. Iím not saying that criminal defense attorneys canít communicate online. You can use online social media to encourage other attorneys to attend an important professional event, you can write a blog that comments on the most recent criminal procedure case handed down by the United States Supreme Court, you can communicate with friends and family about matters not pertaining to your work. You can participate in Facebook, Twitter, Google+ or other forms of blogging, just donít discuss your clients, your cases, or the people involved in your work (i.e., judges, other attorneys, witnesses). Donít post about it, donít tweet about it, donít blog about it.

And if for some reason you make a mistake and post something that later seems inappropriate, donít leave it out there. Delete it.

David Mirsky is a criminal defense attorney and partner in Mirsky & Petito, Attorneys at Law, in Exeter. His work is currently focused on post-conviction litigation in homicide cases. David has practiced extensively in the federal courts.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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